Appeal from the Superior Court of the District of Columbia. (F3245-98). (Hon. Ann O'Regan Keary, Trial Judge).
The opinion of the court was delivered by: Wagner, Chief Judge
Before WAGNER, Chief Judge, FARRELL and GLICKMAN, Associate Judges.
Following his second jury trial for first-degree murder (premeditated) while armed and related weapons offenses, appellant was found guilty only of the charges of possession of an unregistered firearm (PUF) (D.C. Code § 6-2311 (a) (1997))*fn1 and unlawful possession of ammunition (UPA)*fn2 (D.C. Code § 6-2361 (3) (1997))*fn3 (1997). In this appeal, appellant argues that the trial court's restriction of his cross-examination of a key government witness about the witness' mental health history, exclusion of the testimony of his expert psychiatrist concerning its significance and preclusion of cross-examination of a witness with a prior inconsistent statement violated his Sixth Amendment rights to confrontation, compulsory process and to present a defense. He also challenges his convictions of PUF and UPA on the grounds that the statutes under which he was convicted are unconstitutional under the Second and Fifth Amendments. We hold that the trial court did not abuse its discretion in limiting evidence concerning the witness' mental health and excluding expert psychiatric testimony, and that the error, if any, concerning the admission of the witness' prior inconsistent statement was harmless. Further, we reject under controlling precedents appellant's belated constitutional challenges to the PUF and UPA statutes.
At trial the government sought to prove that appellant and a man named Jerome Lucas shot and killed Preston Pearson on April 17, 1997. The principal witnesses supporting the armed murder charge against appellant were Jerome Lucas and G.S. The government's theory was that appellant and Lucas shot Pearson as revenge for Pearson having shot Lucas on Christmas Eve in 1996.
Lucas testified pursuant to a plea agreement under which he entered a plea of guilty to second-degree murder. Lucas testified that in December 1996, he, appellant and one John Richardson planned to rob Pearson. Lucas said that he had a .357-caliber gun, Richardson had a Tech 9, and appellant had no gun, although he and Richardson obtained their guns from appellant.*fn4 Lucas testified that on the night of the planned robbery, Christmas Eve, he became separated from appellant and Richardson. He heard gunshots and then saw Pearson and three other people coming out of the alley. Lucas testified that he turned around and started shooting, and he was shot in the leg, resulting in a permanent limp. He did not see who shot him, but appellant told him that it was Pearson. Lucas testified that he wanted to get revenge, and appellant said that he was "with it."
Lucas testified that, the night of the Pearson shooting, he, appellant and Richardson found out that Pearson was in the area of 15th and A Streets. According to Lucas, he obtained a gun from G.S.'s house, and appellant obtained a 9mm weapon from someone known as "T-Dog," while G.S. was close by. Lucas found Pearson riding a bicycle near 15th and A Streets, and he shot him three or four times. Lucas testified that Pearson fell from the bike, and appellant came out of the alley and shot Pearson six to eight more times. Lucas said that he ran down an alley where Richardson was waiting in a car, and he took off his outer clothing and hid his weapon. Lucas then walked out of the other end of the alley, and the police stopped him. Subsequently, Lucas gave a videotaped statement, which he characterized as "half true and half lies." Initially, Lucas denied knowing anything about Pearson's murder; later he said that John Littles shot Pearson. Lucas explained at trial that John was a fictitious name, and that he named Richardson because he thought that the police could not prove anything against him.
G.S. testified that during the spring of 1997, appellant, Lucas and a man named John frequented his home. He testified that during that period, he saw appellant with a gun stuck in his pants, and he heard Lucas and appellant talking about killing someone. G.S. stated that on the night that Pearson was killed, he went to an alley near 15th and A Streets to try to get some crack cocaine by assisting a drug dealer. While in the alley, he heard Lucas, appellant and John saying that they were "getting ready to take care of business, [g]etting ready to move on out" and "you go your way, I'll go mine." According to G.S., he saw appellant run past him with a gun in his hand. Subsequently, G.S. drew a picture of the gun he saw in appellant's possession.*fn5 G.S. testified that Lucas, who was holding what looked like a gun, ran in a different direction.
G.S. testified that after he obtained something from a drug dealer, he walked to the corner of 15th and A Streets where he saw Lucas and another man whom he concluded was appellant, running into the middle of the street toward a man on a bicycle. He said that he heard gun shots, but he did not see what happened next because he "hit the ground." G.S. was impeached with his grand jury testimony, in which he had said that he saw the two men "point guns at [a man on a bicycle] and gunfire let out." G.S. testified that after the shots were fired, he saw Lucas running away with a gun in his hand.*fn6
According to G.S., not long after he arrived home, appellant came by looking for Richardson. Appellant explained that the man got shot because he had shot Lucas in the leg. G.S. also testified that he had left Richardson at his house with a female companion before he went to 15th and A Streets.
G.S. admitted in testimony that he had received mental-health treatment, but he said that he was not on medication at that time. According to G.S., he was prescribed medication, including Cogentin and others, the names of which he could not recall, but he did not take the medication because it made him drowsy and dizzy. G.S. thought the medications were to make him relax. Id. He said that he had received disability payments, partly because of his mental illness and partly because of a physical handicap, poor eyesight. G.S. testified that although he was not taking his medication, he did not experience any symptoms of his mental illness in 1997, and did not hear voices or see things in April 1997 and the preceding months. G.S. admitted using crack cocaine around the time of the murder, but he said that he did not use the crack that he obtained that night because he was too shaken.
G.S. also testified pursuant to a plea agreement, and he admitted that he had been a paid informant in an unrelated matter. G.S. was impeached with a prior conviction for unlawful entry and escape. Before the grand jury, G.S. said that one of the guns he saw looked like "a pirate gun that shoots big balls" or a spaceman's gun and that appellant had a "big old .45 nickel-plated gun," which contradicted his trial testimony that appellant was armed with a 9mm handgun. G.S. also testified in the grand jury that John had a .38 Smith and Wesson handgun, contrary to his trial testimony that he did not recall John having a gun. G.S. attributed the inconsistencies in his testimony to poor memory and the passage of time.
G.S.'s trial testimony to the effect that he had average eyesight with some trouble seeing out of his right eye was impeached with his 1990 application for Social Security in which he claimed that he was eighty-five percent blind in his right eye and had poor vision in the left. G.S. explained that he had exaggerated his condition because he wanted the money.
The final witness who provided evidence related to appellant's PUF and UPA convictions was Emerson Ellis.*fn7 He also testified pursuant to an agreement with the government. However, he testified that he did not remember or could not recall in response to many of the prosecutor's questions. The government, using Ellis' grand jury testimony, brought out that he had testified before the grand jury that he had seen appellant, Lucas and Richardson together in the area of 17th and A Streets on the night of the murder, that appellant told Ellis that he had borrowed either a .380 or a 9mm handgun from "T-Dog," that appellant had come out of the alley and shot Pearson after Lucas shot him, and that appellant was known to carry a 9mm handgun.
Mr. Walter Dandridge, who was employed with the Bureau of Alcohol, Tobacco and Firearms as a firearms and toolmark examiner, testified that two different kinds of handguns, a Tokarov and a 9mm semi-automatic, were fired at the scene of the murder. The government also introduced evidence that appellant did not have a registration certificate for any kind of firearm or ammunition when the crimes were committed.
A. Restriction of Evidence on Witness' ...